Why The Progressive SC Judgement Will Not Change The Destinies Of Transgenders Overnight

On April 15, 2014, India’s Supreme Court took a major step in making India more inclusive and humane, by according legal recognition for the first time to the ‘third’ gender or ‘transgenders’. The fact that these people do not belong to either the male or female gender should not be used, the highest court directs, to block their entry into educational institutions or employment. The judges went further to classify transgenders as ‘other backward classes’, thereby making them eligible for affirmative reservations in education and public employment.

The significance of this enlightened judgment in reversing a long history of ‘unspeakable violence’ endured by transgenders since colonial times is highlighted by a significant report titled ‘Transcending the Binaries: Transgender Exclusions in Law and Policy’ by Shubha Chacko and Arvind Narrain, for the forthcoming India Exclusion Report 2013-14 by the Centre for Equity Studies.

But the ambiguous sexuality of transgenders, their refusal to accept the sexual identity imposed on them by biology and birth, has led to a long history of social and official refusal to accept them as equal citizens or human beings. Instead they are treated – often violently – as the ‘other’, what the authors describe as ‘invisible, ridiculous, horrific or disgusting’. They are ‘often laughed at, shunned, rejected by their families, denied jobs, ration cards and passports, and exploited by others in the professions they are allowed into (for instance, seeking alms and sex work). They repeatedly face a host of problems from institutions as diverse as family to the medical establishment including the arms of the state, particularly the police. The social and cultural practice of discrimination coupled with poverty, illiteracy and limited opportunities of employment has led to increased vulnerability of these communities.’

The report highlights the many ways that both criminal and civil law in India have criminalised and legally withheld elementary rights from transgenders. A eunuch was considered incapable of acting as guardian, making a gift, drawing up a will or adopting a son. Although this ‘law stands repealed today in theory’, Chacko and Narrain find that it ‘continues to exist as part of the living culture of law.’

The Immoral Trafficking Prevention Act 1896 has been amended to be gender neutral, and in theory does not criminalise sex work; but by making soliciting and running brothels illegal, sex workers are continuously vulnerable.

The report finds that transgender sex workers tend to be arrested on charges of stealing and extortion rather than for sex work. Apart from sex work, the only other profession which society permits transgenders to enter is begging, but anti-begging laws, another colonial legacy, are used to arrest and detain transgenders who solicit alms for a living.

Chacko and Narrain also show how sexual non-conformity is used to bar access of transgenders to many civil rights, even though they in theory enjoy the same fundamental rights as people who accept the sexual identities which biology has assigned them.

The progressive even if greatly belated judgment of the Supreme Court will not change overnight the destinies of people who do not conform to the sexual practices of the majority of the population.

But it reminds us of the unacceptable ways that our society and law treat people of difference – with contempt, injustice and violence – and paves the way for a more humane and inclusive world for people who may or may not be like you or me, but that in no way makes them less human.

The social and cultural practice of discrimination coupled with poverty, illiteracy and limited opportunities of employment has led to increased vulnerability of these communities.

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